Time To Go: Why EU Commissioner De Gucht Has Disqualified Himself From Handling ACTA

from the he-really-doesn't-get-it dept

Even though the European Commission has referred ACTA to the European Court of Justice, the European Parliament continues to examine the treaty in its various committees. Earlier this week, the one dealing with International Trade met for a preliminary discussion. One of the key speakers was the Commissioner responsible for ACTA, Karel De Gucht, who naturally tried to make light of the many problems that have been raised in recent weeks.

But as the text of his speech makes clear, he did a poor job. For example, in an apparent attempt to distract attention from the real issues, he brought up the irrelevant and widely-condemned DDoS attacks on the European Parliament, perhaps hoping to spread around a little guilt by association.

Another passage reveals De Gucht completely at sea when it comes to the online world:

I think it's probably fair to say that everyone in this room knows someone who, without paying for it, has downloaded onto their computer a song, an album or an episode of a television series.

I cannot, in good conscience, condone that action. I know there are some people who see this differently, young people in particular. But for me there is no moral difference between taking something that is not yours in the physical world and doing so in the virtual world. Illegal file sharing means money that should have gone to some of the most creative people in our society does not. It is a disincentive to their work.

The first two statements overlook the fact that there are hundreds of millions of digital files online that can be downloaded without paying quite legally -- De Gucht seems unaware of Creative Commons licensing. He continues with the classic error of treating non-rivalrous digital goods as if they were the same as rivalrous physical ones. It's hard to believe that De Gucht, who trained as a lawyer, doesn't understand the fundamental distinction between copyright infringement and theft. True, he does say there is no "moral" difference, but it's a perverse view that sees creating more copies of a digital file as morally equivalent to stealing someone's bicycle.

Maybe he's basing that perspective on the claim that illegal file sharing deprives creators of revenue; but he offers no evidence for that statement. And there are studies that show the reverse -- that file sharing increases sales. The fact that the entertainment industries are all thriving suggests this anecdotal evidence might be representative of the larger market.

De Gucht then goes on to discuss one particular aspect of ACTA:

Maybe some of you in the back of your mind are worried that the people you know may be subject to fines or jail as a result of ACTA. But today's law is quite specific here. Because to steal even an apple remains a crime that can be reported to the police. However, to share a song without paying for it, while strictly speaking illegal, is not a criminal offence. Damages may be awarded by a judge but there is no possibility of punitive action unless the activity were to be carried out at a commercial scale. This is why today, for example, the people behind and profiting from sites such as 'Megaupload' now find themselves in the spotlight of the law -- and not the tens of thousands of end-users worldwide. This is common sense!

That will not change under ACTA. So if this is one of the reasons that you are having doubts, perhaps in the back of your mind, let me be clear: ACTA will not criminalise anything that is not already a crime. Thousands of young people will not be hauled before the courts because of it.

Even if it's true that ACTA doesn't criminalize anything that is not already a crime, it does set minimum levels for punishments, and encourages through its enumerated possibilities far harsher penalties than are currently imposed. One consequence is that signatories lose the power to change their laws regarding enforcement as they wish: ACTA ensures that future implementations can only be made stricter.

This is what ACTA says about the damages that De Gucht refers to:

In determining the amount of damages for infringement of intellectual property rights, a Party’s judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.

As can be seen, this grants the right holder wide powers to submit "any legitimate measure of value", including ones like "lost profits" that are impossible to calculate sensibly in the case of digital files shared around the Internet. This could easily lead to exorbitant fines of the kind that people are indeed worried about, but which De Gucht dismisses in such a cavalier fashion.

Criminal enforcement is even worse. As De Gucht says: "there is no possibility of punitive action unless the activity were to be carried out at a commercial scale". But what he omits to mention is that "commercial scale" is nowhere defined in ACTA, and has no minimum level specified to exclude ordinary users:

Each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on commercial scale. For the purposes of this Section, acts carried out on a commercia scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage.

Notice the word "shall" -- this is not optional. The key phrase is "indirect economic advantage". For example, consider a site that carries Google Ads, and that also occasionally links to commercial sites offering unauthorized downloads. In doing so, it provides a service to its visitors, who are thus more favorably disposed towards the site, and return there more often, boosting ad revenues: in other words, it has gained an indirect economic advantage. Because it is commercial, it becomes subject to criminal enforcement measures for "aiding and abetting" copyright infringement (another ACTA requirement.) And that means extradition treaties might become relevant, with people running small-scale Web sites facing the threat of being hauled off to America, say, just for including a few links in their blog posts.

ACTA may not criminalize what is not already a crime, but it certainly increases the reach and severity of enforcement. So contrary to what De Gucht claims, those "young people" may well find themselves facing the courts -- or worse -- and all thanks to ACTA.

De Gucht's recent statements show that he lacks a firm grasp of the online world he is seeking to regulate, while his one-sided explanations of how ACTA's civil and criminal measures will work gloss over major problems with the text. Taken together, that pretty much disqualifies him from the crucial task of helping the European Parliament understand the full implications of ACTA, as it seeks to come to a fair and balanced decision about whether to ratify it or not. It's clearly time for De Gucht to move on to other things.

Reader Comments

While De Gucht clearly is incompetent from our point of view regarding ACTA (and I doubt ACTA's supporters are happy with how the whole story is playing out right now in Europe), it needs a real fully-out-blown scandal involving high degree corruption to get rid of a European commissioners (since they are chosen by national governments, not elected).

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Comparing the open source community to music doesn't work. You have content owners whose only source of income is the sales of the music. Then you have the artists who are the scarce goods. Baring 360 deals the record companies are boned.

"I think it's probably fair to say that everyone in this room knows someone who, without paying for it"

I love this. On one hand copyright maximalists argue that we need very strong and harsh laws to stop copyright infringement. But they also completely admit that nearly everyone is infringing copyrights. Do they really want to lock up the majority of the population and nearly everyone under the age of 28?! When did the rest of the world turn into Texas?

"The first two statements overlook the fact that there are hundreds of millions of digital files online that can be downloaded without paying quite legally -- De Gucht seems unaware of Creative Commons licensing."

Sorry Glyn, but you are playing the old justification card again. First off, he speaks very specifically about illegal file sharing (and not legal file sharing), and really, we all know that the vast majority of what is being download on torrents and from file lockers is pirated material.

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He's doing no such thing but you need to play your justification card again with mistruths about torrents and exaggerations about file lockers.

Even if you are correct then please explain why the gatekeepers who are pushing this nonsense continue to make record profits. When you can explain this then we might just listen to you. Until then, happy trolling!

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It is so easy to criticize a speech, which is far removed from an academic paper/study. Simply jump on language, present it completely out of text, and then proclaim "See, the person hasn't a clue about the digital world. For shame."

It is easy to declare "But it has no definitive guidance because it uses words that are not set forth in infinite detail so their paramenters are clearly understood." Never mind that it is a broad statement of PRINCIPLES that will then be considered as each country debates what rules (having specificity), if any, it may believe are appropriate for incorporation into its national laws.

Apparently Mr. Moody is unaware of how legislation is crafted, and the roles played by the judiciary in interpreting legislation. Here is the US Fair Use evolved as a judicial limitation, even though it nowhere appeared in the then applicable versions of US copyright law. Apparently, Mr. Moody believes that judges are merely puppets that regurgitate statutory language.

He proffers a list of terribles concerning what a plaintiff may present as evidence. Oh, the inhumanity of presenting evidence that the other party has the full opportunity to challenge by presenting its own evidence. It seems as if adversary trials escapes his view of how judicial proceedings are actually conducted and what they entail.

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No he doesn't. He never mentions any distinction, just says "free". There are hundreds of millions of files to download without breaking any law.

"we all know"

Oh yes, when you can't answer facts, just run with blind assumptions and call anyone who disagrees a pirate. Isn't a decade and a half of that shit enough for you? How about we discuss reality instead of basing laws on your lies?

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"we all know..."

we all knew that all japanese were not to be trusted during wwII so we locked them all up.
we all knew that the black man was not an individual with rights and was at best a talking animal so we made them property and "civilized" them.
we all knew the plains indians were nothing but thieves and murderers so we penned them into reservations for their own good
the germans all knew that the non-aryan people in and around them in europe were the causes to all of their problems.... that turned out spectacularly didnt it.

the point im making is this: everyone needs to stop with the "we all know" rhetoric. its decisive, inflammatory and serves no other purpose than to appeal to the baser instinct of people when you have no real proof.

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I disagree "We all know" is for me a linguistic tool, it can be used correctly or incorrectly like in the case of the AC, but it can also be used correctly like in "We all know racism is bad", we know it today, and that may change in the future because we all know that things change.

Been there, done that :-)

"And that means extradition treaties might become relevant, with people running small-scale Web sites facing the threat of being hauled off to America, say, just for including a few links in their blog posts. "

Re: Been there, done that :-)

If only De Gucht was the only incompetent politician or bureaucrat who deals with attempting to regulate the Internet and the Web I think this would be notable. If he was the only one who was lying about the criminalization of currently legal activities he would be notable.

Sadly, he isn't as we have experienced with SOPA/PIPA and new IP acts in other countries. The gatekeepers and their hired guns will continue their FUD campaign in spite of evidence that infringement actually increases sales and a good, easily found Web presence does demonstrate that music, movies and so on will be purchased instead of "pirated". Amazon and iTunes are great examples of this.

What is truly sad is the complete unwillingness of those in positions of power and influence to understand that in many ways the Web is changing everything much in the same way the printing press did only much, much faster.

ACTA may be or is in serious trouble in Europe which would spell the end of this abomination but that the lies and deliberate misreading of what's happening will continue.

And there are studies that show the reverse -- that file sharing increases sales.

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That will not change under ACTA.

Those two statements don't agree, he is telling everyone "look we need to change some things, but don't worry it will stay the same".
No it won't, if it was to stay the same they would not need a treaty.
What is the problem with copying after all?
Under current copyright laws most creators are work for hire or end up selling the rights of the work they created to others and in both cases they don't get nothing and are even forbiden from making future use of that content, while if it was open creators would have to make contracts with firms so they could push PR like "the original from John Smith" and use the psychological effects to keep people, while having to be nice to the creator all the while the creator can and could do more jobs and it may have to compete with others creators of content but that is good, since every failure he has he can look up to others and copy them too to see what works and what doesn't, that sharing is fundamental for a healthy market, that experimentation that goes on is the to business what radar is to aviation or what eyes are for people and somehow people want to create a place where no one can see what is in front of them.

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Glynn you are using strawman arguments to attack him: Look, he says all downloads are illegal, he doesn't know about Creative Commons, he's an idiot, ignore everything he says.

Also what you cite as "studies" are anecdotal experiences. Only one of the "studies" was performed by a group, the rest are simply individual experiences. I could cite The Hurt Locker as an example of a film which saw its revenue devastated by piracy, but I certainly couldn't claim that as a "Study".

No one can argue that millions of creative works are pirated. The effect of that piracy is difficult, if not impossible to determine. Estimates are made by both sides of the issue (the pro-piracy side and the anti-piracy side). Obviously, these estimates are made to cast the most favorable light on the respective positions. The truth is probably somewhere in the middle.

Do I think that money is being lost because of piracy, absolutely. Do I think that some people pirate content and then later purchase that content, absolutely. However, I do not believe that piracy has a net-positive effect on sales. I believe more sales are lost due to piracy than those that are gained.

I personally have converted some pirates into paying customers. I did so by explaining that the content creators invested time and resources into the production of the creative work. I explained that they are requesting a relatively miniscule percertage of the production cost for the opportunity to experience the piece.

Oftentimes, people are not aware that piracy is costing the rightsholder money. The rightsholder has already paid the actors, the director, the scriptwriter, the camerman, etc.. for their work. But if the return on investment is negative (yes there are a LOT of movies and albums that actually LOSE money) or if performance is lackluster, these people will not be given new opportunities.

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No one can argue that millions of creative works are pirated. The effect of that piracy is difficult, if not impossible to determine. Estimates are made by both sides of the issue (the pro-piracy side and the anti-piracy side). Obviously, these estimates are made to cast the most favorable light on the respective positions. The truth is probably somewhere in the middle.

Nope, but one can prove empirically that the harms done by it are firmly in fantasy land.

If that were true open source would not exist, right?
But still open source which says you are free to copy, modify, distribute and sell is a growing ecosystem, vibrant full of people creating and being paid to do so, how do you dismiss reality?

Red Hat is a billion dollar company and all their "products" are pirate endlessly, where is the harm again?

Open source alone disproves all those assumptions of harm, it also proves that one doesn't need a government granted monopoly to sell anything, he can do it even in the face of rampant copying.

Do I think money is being lost? Nope, maybe spent somewhere else but not lost, how can you lose something you never had? potential sales are not sales are abstractions, assumptions or in the vox populi just dreams, why are people using rumors to decide serious business directions is beyond me.

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I do not believe that piracy has a net-positive effect on sales.

Japanese animes conquered the world on the back of piracy, was that not a net positive outcome?
Open source is thriving despite everybody being able to pirate it, is that not positive?

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I personally have converted some pirates into paying customers. I did so by explaining that the content creators invested time and resources into the production of the creative work. I explained that they are requesting a relatively miniscule percertage of the production cost for the opportunity to experience the piece.

Did you explain also to them they will be paying those people everytime they go out, they go to the gym, they enter a mall, buy a storage device and will do so until the day they die?
Of course not.
Lets see how you feel if you was the one having to pay the makers of the tools you use to make money royalties until you die and you had to pay levies and everything you ever bought had you paying a fee for them.

I doubt you would find it fair if you had to pay royalties for the car makers for the use of said car for driving to work where to gain money, I mean without that car would you take the bus to go to work? could you transport actors and equipment to a remote area without those vehicles? So why are you not paying the car makers royalties on every penny you make?

Oh that is right only a class of people can do that because somehow they are more important than the rest of society.

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Oftentimes, people are not aware that piracy is costing the rightsholder money. The rightsholder has already paid the actors, the director, the scriptwriter, the camerman, etc.. for their work. But if the return on investment is negative (yes there are a LOT of movies and albums that actually LOSE money) or if performance is lackluster, these people will not be given new opportunities.

That is not a problem for the public, is the problem of whomever is trying to do that work, but really between giving up my own rights so you can uphold your sense of entitlement that is an easy choice screw the entertainment industry.
I'm not accepting censor laws just because some douche in a couch wants more money, I'm not accepting more restrictions on what I can use and how I can use it.

If I paid for a CD or a movie I should be able to play that without having to pay anything else on top of that, content owners are stealing from the public and that is just wrong, not to mention that they don't even need a government granted monopoly to be in business which makes the granting of said monopoly even more immoral.

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If that were true open source would not exist, right?
But still open source which says you are free to copy, modify, distribute and sell is a growing ecosystem, vibrant full of people creating and being paid to do so, how do you dismiss reality?

I agree with most of your points but I really wish people would stop citing open source as the alternative model that's somehow overlooked in the entertainment industry. There already exists something like that in the world of creative works and it's called Creative Commons. Many artists use it, but it doesn't mean it makes sense for everybody. Just like there are reasons why Microsoft, Apple, Oracle and Adobe don't just open-source their cash cows.

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About the boggeyman(strawman) argument, you are using it too.
Piracy is your strawman.
You use it to claim harm when you can't show none and other can point out to real world verifiable cases of people who allow free copying, distribution, modification and even selling without consent that doesn't impede their capacity to sell anything.

But everyone can point to how problematic granted monopolies are and the negative effects they have on economies.

ACTA will harm economies

ACTA will not be legally binding in the US, so MEPs should be asking themselves why it should be legally binding in the EU, and what the consequences will be if it is (while not binding in the US).

If it's not a binding agreement in the US, but is in the EU, then this will give the US a distinct economic advantage. It will also mean that a US rights holder will be able to promptly obtain the details of an EU citizen based on nothing more than an IPR infringement, but not vice versa.

In other words, if the EU ratifies ACTA, it should do so only if it is fully aware of the non-reciprocal nature of this "agreement", and what it will mean to the European economies. Under these circumstances (i.e. ACTA not being legally binding in the US), it will show tremendous favour to US businesses and interests.

I'm going to write to my MP about this issue, and only this issue (as I think it's a very important one in these time of austerity).